51 La. Ann. 163 | La. | 1898
The opinion of the court was delivered by
The accused, indicted for murder, prosecutes this ap-' peal from the sentence of death.
The Questions submitted to us arise on the bill of exceptions re1 served to the refusal of the new trial, applied for on behalf of the ac
The contention of the State that the incompetency of one of the jurors who tried the accused, cannot be urged after the verdict to set it aside, is well founded, with this qualification; that the disqualification of the juror was not known to the accused, when the juror was-presented, and could not then have been ascertained by due diligence. The diligence exacted is, that the accused should have examined the juror on his voir dire, the time and mode for testing the juror’s competency, and that the juror should have answered falsely as to his competency. The qualification is quite as well settled as the rule itself invoked by the State. Thompson & Meriam on Juries, S. 302; State vs. Garig 43rd Ann. 365; State vs. Nash, 45th Ann. 974; State vs. Button, 50th Ann. not yet reported. Were it otherwise, there would be no relief for the accused deceived by the false anwsers of the juror on his voir dire examination, and the accused would suffer the penalty for crime of which he had never been convicted by a jury constituted' in accordance with the constitution and laws. The further contention of the State, that when the accused seeks to set aside the verdict for the incompetency of the juror developed after the trial, the burden is on the accused to show the juror was examined on his voir ‘dire, and gave false answers. It is distinctly stated in the rule made part of the bill, and signed by the judge without qualification, that the juror was-questioned whether he had formed or expressed any opinion as to the guilt of the accused, answered in the negative, avowing his freedom.
Although a rule for a new trial is the appropriate remedy, when the conviction has been procured from an illegal jury, i. e. not constituted as required by the Constitution, securing to the accused the “historical .jury” of twelve impartial men, and although the accused has brought himself within the rule of diligence that he must have examined the juror whose competency is now sought to be impeached, on his voir dire, and that the juror answered he was competent, still, it is contended, this court cannot review the testimony the accused claims exists, the incompetency of the juror and the falsity of his answers on the voir dire examination that he bad formed no opinion of the guilt of the accused. If this contention is sustained there is then no relief to be had in this court, when the accused claims the jury that convicted him was composed in violation of his Constitutional right to an impartial jury. According to the argument addressed to us the -decision of the trial judge is final. The general rule is invoked of the weight due to the decision of the lower court on application for new trials in criminal cases, and in the brief of the State we have a copious citation of authority from the other States as well as our own, in sup■port of that asserted to be the discretion of the trial judge, not subject to revision in this court. Our courts, however, have carefully dis■criminated decisions of the trial judge on applications for new trial refused by the trial judge with no basis exhibited to this court on which the trial judge acted, from cases like the present, when the facts on which the trial judge refused the new trial are brought up by the bill of exceptions. The question arising on the facts thus spread before this court in the record, cannot be dismissed by us as one resting in the discretion of the trial judge, but is one of law, or, at least,, as it is sometimes expressed, of law blended with fact, so as to make it ■a legal question within the jurisdiction of this court to review, under the grant to this court of appellate jurisdiction in criminal cases on questions of law. Constitutions of 1879, Art. 81; and Art. 85 of 1898. Here the accused insists he has been deprived of his Constitutional rights of a jury trial without which there can be no conviction of the
One of the witnesses on the rule for the new trial testifies in the-most emphatic terms, that on the day the case was tried before the jury was empanelled, the juror stated, in effect, he did not think he-would be accepted, for the counsel for the accused knew the opinion then avowed by the juror, “I am for conviction.” To this testimony is opposed the denial of the juror called as a witness; and there is also-the testimony of two others that they did not hear any statement though present in the skiff crossing- the river, when the statement is imputed to the juror. There is testimony that on another occasion, about a week before the trial, the, juror stated he thought both the accused and the other indicted with him, guilty, that witnesses bad' for both would be produced; in the course of the cross-examination, extremely searching, 1he juror was questioned wiili persistency
It is true the juror testifies he had formed aio opinioai, could try the •case impartially oai the law and testimony, and the State addresses to us the argument that opinions not fixed of the accuseds guilt, do not .disqualify the juror. We cannot suppose that if the testimony of the ■condition of the juror’s mind had been put before the trial judge that rthe juror would have gone oai the panel. However, we cannot determine his fitness as a juror by his answers given after verdict when his competency has been questioned to pass sentence on the accused, and in solving that issue gives greater weight to such answers, weighed with the testimony of his declarations before the trial, testified to by four witnesses to as many occasions, to the general effect his mind was .made up for conviction, and, if accepted, he would hang both.
We cannot resist the force of the testimony of four different wit
With the most patient examination of the testimony, it is our conclusion that the juror was not qualified to serve on the jury that convicted the accused, and for this cause the sentence must be set aside and a new trial awarded.
It is, therefore, ordered, adjudged and decreed that the sentence of the lower court be reversd and set aside and a new trial granted the accused, that to that end the cause be remanded and that he be held in custody to stand said new trial according to law on the indictment preferred against him.